In Re Mill Road Cemetery Cambridge [2025] ECC Ely 2, judicial consideration was given to the respective responsibilities of a group of churches and the local authority when the maintenance of a churchyard, closed by Order in Council, was transferred under s.215 of the Local Government Act 1972. Mill Road Cemetery, Cambridge, was purchased by a deed of conveyance on 20 August 1847; the ground was consecrated, and the cemetery divided into separate plots to allow the churches who purchased the land to use as extensions of their individual churchyards; it was opened by the Bishop of Ely in 1848.  Until its final closure, it served as the burial ground for 13 city parishes (now 10 through amalgamation) whose churchyards had become full. A chapel built by George Gilbert Scott was demolished in 1954.

The cemetery is held in trust by the trustees (the incumbents of the thirteen parishes) and maintained by Cambridge City Council in collaboration with the trustees and Friends of Mill Road Cemetery. In Re Mill Road Cemetery Cambridge [2025] ECC Ely 2, Guy Belcher, the Biodiversity Manager employed by Cambridge City Council (“CCC”) sought a general faculty to allow the CCC to undertake works of repair to memorials and stonework, tree work and miscellaneous works as further identified in the application in the paragraphs under the heading “WORKS TO BE COVERED BY THE PROPOSED GENERAL FACULTY” within Mill Road Cemetery (“the cemetery”) [1].

Part of the cemetery was closed for burial by Order in Council on 12 December 1904 and the remainder on 29 September 1949 pursuant to the Burial Grounds (Cambridge) Order 1949 [6(b)]. Leonard Ch. commented “Whether CCC took over the maintenance of the cemetery on closure, as they were legally required to do, it is clear that by 1990 the CCC had formally agreed to do so” [6(d)] [1].

The CCC has a responsibility for the maintenance and upkeep of the cemetery and is at present required to apply for a faculty to cover the sort of works for which it now applies for a general faculty. The purpose of the general faculty is to cut down on both the administration and cost involved in the CCC having to apply for individual faculties whilst the churches to which the land belongs keep control of any substantial works which will still require a faculty [2,3].

Submissions to the Court [4] questioned: whether the CCC required faculty approval to carry out any works to the cemetery; the status and power of the parishes “to interfere with the works undertaken in the cemetery” and” to some of the work that the CCC intends to carry out under the general faculty”.

Over the years there have been a number of groups formed, or purportedly formed, to coordinate the approach of the various churches to the use of the cemetery or to take on responsibility for the upkeep of the cemetery. Some of these bodies had no legal basis for their existence, “including one group which identified itself as trustees and which it would seem had no legal entitlement to act on behalf of the Parochial Church Councils (‘PCCs’) of the various churches that owned the land comprising the cemetery” [6(b)].

With regard to the continuing involvement of the parishes, the Chancellor commented:

“[7]. The closure of the cemetery and the rôle of the CCC in its maintenance does not absolve the parishes of responsibility for the cemetery. The freehold title to the land remains with the incumbents for the time being of the churches which share ownership. Their duties include ensuring that the CCC carry out the necessary work to keep the cemetery safe for use and that it is maintained.

[8]. The cemetery, albeit it, is a valuable open space for public use within Cambridge, remains principally a place in which the churches have buried parishioners, and possibly others who applied by faculty to be buried there. The churches through their incumbents and their PCCs are guardians of the mortal remains of those buried on their land in perpetuity. They should, so far as it is possible to do so, ensure that the areas for which they have responsibility remain places of tranquillity“.

Noting the overriding objective of the Churchyard Regulations,[8], Leonard Ch. stressed that that responsibility does not cease because the churchyard or cemetery is closed for burial or because a local council has taken on responsibility for maintaining the churchyard after closure [9]. He further corrected the assertion that the site was formally closed and “passed” to Cambridge City Council for management:

“[11]. For the avoidance of doubt, the site has never been “passed” to the CCC; only responsibility for maintenance and upkeep has fallen on the CCC.

[12]. It is for this reason that the parishes through a vote of their individual PCCs have had to show their support for the faculty application made by Mr Belcher. Similarly any application for a permanent or temporary exhibition in the cemetery would require either a faculty or, possibly an Archdeacon’s temporary licence, before it could be staged. The placing of new benches can be permitted under Faculty Jurisdiction with a ‘List B’ certificate issued by the Archdeacon or other furniture could only be achieved through an application for a faculty, agreed by the individual PCCs and approved by the Chancellor.

[13]. Whether or not the churches who have joint responsibility for the cemetery pass that responsibility to a committee representing all the churches is a matter for them. That committee would have no power to make decisions on behalf of the individual churches but may recommend to the PCCs what needs to be done. It is then for the individual PCCs to acknowledge their approval to work being done under a faculty by a vote at each of the PCC meetings.

[14]. As to the responsibilities of the PCCs and the CCC, under s.215 of the Local Government Act 1972 where the CCC has taken on the obligation to maintain the cemetery in good order there is nothing of a mandatory nature left for the PCC to do by way of church maintenance. That does not absolve the PCCs of the various churches from ensuring that cemetery is properly maintained by the CCC and ensuring that the cemetery is treated in accordance with the Churchyard Regulations 2006 [2].

The purpose of the General Faculty

The Chancellor stated:

“[15]. The CCC want to be able to carry out maintenance work without resorting to separate applications for a faculty which might otherwise be required. Much of the regular maintenance work which they undertake in the cemetery, such as mowing the grass or cutting back shrubs etc, does not require a faculty. More substantial work to memorials, brickwork, signage and tree felling may or will require a faculty.

[16]. The application is drafted in a way that will relieve the CCC of obtaining a faculty for the majority of the work which is undertaken but which retains faculty control for the more substantial work which may have a significant affect on the cemetery.

[…]

[18]. In my judgment the application for a general faculty is unremarkable and there is merit in reducing the need for the Consistory Court to be involved in the process. It recognises the responsibility that has been taken on by the CCC and which they undertake to the benefit of the churches with responsibility for the cemetery and to the benefit of the local community”.

He concluded:

“[22]. The ‘General Faculty’ document which has been drafted by the Parishes’ Committee (but approved by each of the PCCs of the churches whose incumbents retain a freehold title to their part of the cemetery) with input from the CCC provides a sensible way forward whilst the churches retain some limited control over works in the cemetery.

[23]. I do not consider the path closures[3], which are designed to return the cemetery to its pre-Covid state and to protect the grassland, to be objectionable”.

Faculty granted [26].

[1]. Such an assumption is not uncommon in relation to searching for Orders in Council and their subsequent maintenance by the Local Authority. However, Legal Opinions Concerning the Church of England on Closed Churchyards suggests a number of approaches which might be adopted in tracing Orders in Council, (at [5].]

[2] Although not relevant to this judgment, a document by the Dioceses of Gloucester comments that prior to 1 April 1974 (when the 1972 Act came into force) were governed by the provisions of s18 Burial Act 1855. This section was repealed by Schedule 30 to Local Government Act 1972 (c. 70), except in relation to City of London.

[3] There was a specific objection concerning the closure and elimination of unofficial footpaths, [19] to [21].